ADX Communications v. FCC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2015 Decided July 17, 2015
No. 14-1131
ADX COMMUNICATIONS OF PENSACOLA AND ADX
COMMUNICATIONS OF ESCAMBIA,
APPELLANTS
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
6 JOHNSON ROAD LICENSES, INC., ET AL.,
INTERVENORS
On Appeal of an Order of the
Federal Communications Commission
Dan J. Alpert argued the cause and filed the briefs for
appellants.
James M. Carr, Counsel, Federal Communications
Commission, argued the cause for appellee. With him on the
brief were Jonathan B. Sallet, General Counsel, David M.
Gossett, Deputy General Counsel, and Richard K. Welch,
Deputy Associate General Counsel. Pamela L. Smith, Counsel,
and Jacob M. Lewis, Associate General Counsel, entered
appearances.
2
David D. Oxenford, Lawrence M. Miller, Lewis J. Paper,
and Victoria N. Lynch were on the joint brief for intervenors.
Before: ROGERS, TATEL and SRINIVASAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: ADX Communications (“ADX”)
unsuccessfully petitioned the Federal Communications
Commission to deny the assignment to a competitor of several
radio licenses in the Pensacola, Florida, and Mobile, Alabama,
markets. On appeal, ADX contends that, in applying the
statutory caps on ownership of radio stations, the Commission
should not have used its normal market definition methodology
because of unique aspects of the Pensacola and Mobile markets.
Alternatively, it contends the Commission should have applied
the two-year waiting period applicable to changes in market
definition. Consistent with our deferential standard of review,
because the Commission reasonably exercised its judgment in
deciding not to deviate from the market definition methodology
it adopted in 2003, and because its interpretation of the waiting
period was consistent with the policy established in its prior
order and not otherwise suspect, we affirm.
I.
The Communications Act, 47 U.S.C. §§ 151 et seq., charges
the Federal Communications Commission with regulating radio
stations, see id. § 303, primarily through licensing, see id. § 307.
In awarding new licenses or approving transfers of licenses, the
Commission must determine whether the proposed ownership of
the license would serve the “public interest, convenience, and
necessity.” See id. §§ 309(a), 310(d). Guided by the principle
that the public interest is served by the “diversification of mass
media ownership,” which “prevent[s] undue concentration of
3
economic power,” FCC v. Nat’l Citizens Comm. for Broad., 436
U.S. 775, 780 (1978), the Commission has long capped the
number of radio stations that one entity can own in a radio
market. See generally In the Matter of 2002 Biennial
Regulatory Review, 18 FCC Rcd. 13620, ¶ 235 (2003)
(“Ownership Order”). The Telecommunications Act of 1996,
Pub. L. No. 104-104, 110 Stat. 56 (1996), set specific ownership
caps, based on the total number of radio stations in a market, see
id. § 202(b)(1)(A)-(D), 110 Stat. 110, which the Commission
adopted in its radio ownership rules.1 The Commission has
reviewed the ownership rules several times since 1996, see id.
§ 202(h), and concluded the numerical limits continue to serve
the public interest. See generally Prometheus Radio Project v.
FCC, 652 F.3d 431, 462–63 (3d Cir. 2011).
Before 2003, the Commission used a “contour-overlap
methodology” for identifying the boundaries of a radio market.
See Ownership Order, ¶ 256. A radio station’s “market” was
determined based on the overlaps between its “principal
community contours” — the area in which the station’s signal
is strong — and other stations’ principal community contours.
See id. ¶¶ 250–52. The Commission treated as commonly
owned all stations whose principal community contours
mutually overlapped with each other, see id. ¶ 251, and the
1
The ownership caps are: (1) in a market with fourteen or
fewer radio stations, no owner can hold more than five total licenses
and three same-service (i.e., AM or FM) licenses, (2) in a market with
between fifteen and twenty-nine radio stations, no owner can hold
more than six total licenses and four same-service licenses, (3) in a
market with between thirty and forty-four radio stations, no owner can
hold more than seven total licenses and four same-service licenses,
and (4) in a market with forty-five or more radio stations, no owner
can hold more than eight total licenses and five same-service licenses.
47 C.F.R. § 73.3555(a).
4
market as all stations whose principal community contours
overlapped with any one of the commonly owned stations’
principal community contours, see id. ¶ 252. This meant that the
definition of the “market” changed for each combination of
stations. Id. ¶ 256.
By 2003, the Commission had identified “conceptual
problems” with the contour-overlap methodology, id. ¶ 257:
Sometimes a station was “counted in the market for purposes of
establishing the number of stations in the market,” but was not
“counted against a licensee’s cap on the number of stations it
may own in that market.” In the Matter of 1998 Biennial
Regulatory Review, 15 FCC Rcd. 11058, ¶ 66 (2000); see also
Ownership Order ¶¶ 253–55. Sometimes the contour-overlap
methodology created inconsistent market definitions where “the
size of a radio market” was “unique to the proposed combination
being evaluated,” rather than being “in line with coherent and
accepted methods for delineating geographic markets for
purposes of competition analysis.” Id. ¶ 256. The methodology
created perverse incentives to consolidate ownership, id. ¶ 257,
and it often did not meaningfully capture the actual state of
competition in a given area, id. ¶¶ 258–59.
To remedy these shortcomings, the Commission adopted
the market definitions produced by Arbitron, a private company
that collects data on the telecommunications market. (Arbitron
was acquired and renamed Nielsen Audio in 2013, see
Appellee’s Br. 8 n.6; for clarity, we refer to Arbitron.) The
Commission found “Arbitron’s market definitions are an
industry standard and represent a reasonable geographic market
delineation within which radio stations compete.” Id. ¶ 276.
For major metropolitan areas, Arbitron defines an “Arbitron
Metro Survey Area” (or simply “Arbitron Metro”), which
represents the “commercially accepted and recognized definition
of [the] radio market.” Id. ¶¶ 274–75. Arbitron also identifies
5
each station’s “home” Metro, based either on the community
that the station is licensed to serve (or “community of license”)
being within the Metro, or on its determination that a station
licensed elsewhere nonetheless “compete[s] with the radio
stations located in the Metro.” Id. ¶ 279. For purposes of the
multiple ownership rules, the Commission considers a radio
station to be located in its “home” Metro, as determined by
Arbitron, as well as in the Metro where its community of license
is located, if it is not within the same Metro. See id. ¶ 280 &
nn.594, 595, 596; id. ¶ 286 n.609. For radio stations not located
inside an Arbitron Metro, the Commission retained a modified
version of the contour-overlap methodology. See id. ¶¶ 285–86.
The Commission also identified two possible problems with
the Arbitron-based methodology that might arise in individual
cases. First, although it concluded that Arbitron market
definitions would serve the purposes of the ownership caps “in
virtually all cases,” the Commission acknowledged that there
might be exceptions. Id. ¶ 497. In that event, “an interested
party . . . has a statutory right to file a petition to deny a specific
radio station application and present evidence that makes the
necessary prima facie showing that the transaction is contrary to
the public interest.” See id. (citing 47 U.S.C. § 309(d)).
Second, the boundaries of Arbitron Metros, as well as “home”
market designations, were subject to change by Arbitron, often
at the encouragement of regulated parties. See id. ¶ 278. To
discourage manipulation, the Commission adopted a two-year
waiting period before a radio station owner could take advantage
of a change in market boundaries or “home” status. See id.
ADX Communications (“ADX”) is licensee of two radio
stations in the Pensacola, Florida, Arbitron Metro. In May and
July 2012, one of its competitors, Cumulus Licensing LLC
(“Cumulus”), filed applications to acquire licenses in the
Pensacola Metro and the adjacent Mobile, Alabama, Metro.
6
Because Cumulus also proposed to transfer some of its licenses
to other owners, the net result would be that Cumulus would
gain one license overall. Cumulus had recently changed the
community of license for another license — station WDLT-FM
— from a city outside the Mobile Metro to a city within it. This
had the effect of changing the market definition methodology to
which all of Cumulus’s licenses were subject. Before, they
would have had to satisfy the contour-overlap methodology
because one community of license was not within any Arbitron
Metro. See Ownership Order, ¶ 286 n.609. After the change in
community of license, Cumulus’s radio stations only had to
satisfy the Arbitron-based methodology.
ADX filed petitions to deny the proposed transfers on the
ground that Cumulus’s acquisition would not comply with the
multiple ownership limits under the contour-overlap
methodology, to which Cumulus’s licenses would be subject
without the change in community of license. Neither the
Commission nor Cumulus (nor the other intervenors) has argued
otherwise, and Cumulus’s purchase agreement admitted as
much, see Asset Purchase Agreement, ATI-2500130v12, at 1
(May 4, 2012). ADX argued that because the adjacent
Pensacola and Mobile markets were both served by 14 radio
stations in common, the Commission should deviate from the
normal Arbitron market definitions and treat the region as one
market. Under that approach, the assignment to Cumulus would
have resulted in Cumulus owning six FM stations in the
combined market, which exceeds the ownership caps in 47
C.F.R. § 73.3555(a), supra note 1. ADX also argued that the
two-year waiting period described in the Ownership Order
should apply to Cumulus’s change in community of license.
And if Cumulus thereby could not rely on the Arbitron market
definitions, then its acquisition would have to be analyzed using
the modified contour-overlap methodology, under which it
would violate the ownership rules.
7
The Media Bureau denied ADX’s petitions and granted the
assignment applications. See Dan J. Alpert, Esq., 28 FCC Rcd.
20 (Media Bureau 2013) (“2013 Bureau Denial Letter”). It
determined that after the proposed assignments, Cumulus’s
station ownership would comply with the ownership rules using
the Arbitron market definitions. It rejected ADX’s argument to
depart from the Arbitron definitions because it found “nothing
new or unique about two adjacent Arbitron markets sharing
numerous radio stations.” Id. at 27. Nor did it find the proposed
transaction to be contrary to the public interest because, even
after the assignment, “both the Pensacola and [Mobile] markets
will continue to be served by at least ten different station
owners.” Id. at 25. The Bureau also found that the “community
of license relocation did not trigger the two-year safeguard
established by the Ownership Order,” because it did not
“directly concern market definitions, the main focus of the two-
year safeguard.” Id. at 26.
ADX filed an application for review, and the Commission,
by memorandum opinion and order, affirmed the Bureau’s letter
decision. See In the Matter of 6 Johnson Road Licenses, Inc., 29
FCC Rcd. 6386 (2014) (“2014 Denial Order”). The
Commission, observing that the Bureau had “fully addressed . . .
these issues,” concluded first, that deviation from the Arbitron
market definition was not warranted because “there is nothing
new or unique about two adjacent Arbitron Metro Markets
‘sharing’ numerous stations,” the contour-overlap methodology
was “precisely the approach that the Commission rejected when
it adopted the Arbitron Metro standard in 2003,” and
“competition for listeners would be preserved in the Mobile and
Pensacola markets” by the participation of at least ten owners in
each market. Id. ¶ 4. Second, the Commission declined to apply
the two-year waiting period because changes in community of
license did not “implicate the Commission’s underlying concern
8
regarding the malleability of Arbitron Metro market
definitions,” since the Mobile Metro had already been the
“home” market for the license in question. Id. ¶ 5 (quotation
marks omitted).
II.
On appeal, ADX contends that the Commission’s “robotic
application of its ‘bright-line, geography-based’ multiple
ownership rules and polices in this instance is irrational,
capricious, and contrary to the public interest.” Appellant’s Br.
21. In ADX’s view, the decision not to deviate from the
Arbitron market definitions was “improper” because those
definitions did not capture the actual state of competition in
Mobile and Pensacola. Id. at 35. Maps of the principal
community contours of Cumulus’s stations show that their
signals reach large portions of both Metros. As ADX points out,
some of those stations are transmitted from the same tower even
though they are classified as being located in different markets.
As a result of the assignment, Cumulus would own six FM
stations that reach both markets even though the regulations cap
the number of same-service stations in even the largest markets
at five. See 47 C.F.R. § 73.3555(a)(1)(i), supra note 1. ADX
maintains that the Commission was obligated to take a “hard
look” at the “level of market dominance on the part of Cumulus”
and failed to do so. Appellant’s Br. 21–22.
The court’s review of the 2014 Denial Order is limited to
determining whether the Commission’s decision was “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). To satisfy this
standard, the agency must have articulated a “rational
connection between the facts found and the choice made.”
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (quotation marks omitted). The court
9
must defer to the “Commission’s interpretation of its own rules
. . . unless it is plainly erroneous or inconsistent with the
regulation.” Star Wireless, LLC v. FCC, 522 F.3d 469, 473
(D.C. Cir. 2008) (quotation marks omitted). The court similarly
defers to the Commission’s “reasonable application of its own
precedents.” Vernal Enter., Inc. v. FCC, 355 F.3d 650, 658
(D.C. Cir. 2004).
The Commission gave three reasons for refusing to depart
from the Arbitron approach. Its analysis, which incorporated
that in the 2013 Bureau Denial Letter, satisfied the
Commission’s burden to reasonably explain its decision. First,
and most importantly, it explained, with regard to ADX’s claim
that Mobile and Pensacola markets should be viewed as one
market, that “there is nothing new or unique about two adjacent
Arbitron Metro markets ‘sharing’ numerous stations — i.e., each
Metro receiving substantial signal coverage from stations that
are ‘home’ to the neighboring Metro.” 2014 Denial Order, ¶ 4
(quoting 2013 Bureau Denial Letter at 27). It noted a pair of
similarly adjacent markets in the Orlando, Florida, region. See
id. ¶ 4 n.6. The Bureau had also observed that “[m]any Arbitron
Metro markets nationwide are adjacent to each other,” with
some “even embedded in another Metro market, yet [they] are
still treated separately under the Ownership Order.” 2013
Bureau Denial Letter at 27. In its brief, the Commission
attached a map of all Metros in the United States that shows
there are dozens of adjacent pairs of Arbitron Metros across the
country. See Appellee’s Br. Ex. A.2 Although the Commission
acknowledged in adopting Arbitron market definitions that it
would allow for exceptions where necessary in the public
interest, see Ownership Order, ¶ 497, the exception urged by
ADX would effectively reinstate the contour-overlap
2
The map is available at http://www.arbitron.com/
downloads/arb_us_metro_map_12.pdf.
10
methodology in many parts of the country, contrary to the
“bright-line, geography-based definition” adopted in 2003.
2013 Bureau Denial Letter at 24. Given the problems
associated with the contour-overlap methodology that were
identified in the Ownership Order, see id. ¶¶ 253–60, the
Commission reasonably rested its decision on the fact that the
circumstances identified by ADX also existed in many other
metropolitan regions. See 2014 Denial Order, ¶ 4.
ADX maintains that its situation is different from other
adjacent Metros because in Pensacola and Mobile “one owner’s
stations serve the majority of both markets,” and “the number of
stations serving the majority of both markets exceed[s] the
Commission’s multiple ownership limits.” Reply Br. 17–18.
This confuses the market definition with the subsequent
application of the ownership limits. The fact that an assignment
would violate the ownership rules under one market definition
but not the other does not dictate which market definition should
apply. ADX emphasizes that Cumulus’s six FM stations will
reach the vast majority of listeners in both Metros, a situation
that does not necessarily exist in every pair of adjacent Metros
where an owner would exceed the caps under contour-overlap
methodology. Still, every adjacent pair of Metros has the
potential for the same situation to arise. This possibility appears
unavoidable in the Commission’s decision to switch to the
Arbitron methodology, which the Commission concluded was
nonetheless justified as a more realistic way to assess the actual
state of competition. As the Commission has explained, the
Arbitron market definitions use much more data than signal
coverage. See Ownership Order, ¶ 279–80. It was therefore
reasonable for the Commission to conclude that “there is
nothing new or unique about two adjacent Arbitron Metro
markets ‘sharing’ numerous stations,” 2014 Denial Order, ¶ 4
(quoting 2013 Bureau Denial Letter at 27), and the Commission
did not need to examine the distribution of stations in all of the
11
other adjacent Metros in the United States. ADX, in other
words, had to show circumstances more unique than the fact that
the ownership rules would have been violated under the prior
methodology. See Ownership Order, ¶ 497.
Precedent on which ADX relies offers an example of a
circumstance that has been deemed unique. In Luis. A. Soto, 22
FCC Rcd. 2549 (Media Bureau 2007), the Media Bureau agreed
to make an exception to the Arbitron market definition for a
radio station on the far western side of Puerto Rico. It did so
only after identifying a “unique combination of facts presented
in this particular case,” including multiple centers of economic
activity within the Metro, a very high number of stations and
owners, and “a central mountain range which effectively blocks
signals originating in the eastern portion of Puerto Rico from
reaching the western portion of the island, and vice versa.” Id.
at 2551–52. The Bureau declined to rely on a factor that was
present elsewhere: “While there are other Arbitron markets that
comprise more than one [Metropolitan Statistical Area], Puerto
Rico is the only such market that has the additional factors of
geographic size, topography, and sheer numbers of radio stations
and station owners.” Id. at 2552. The Commission reasonably
concluded here that ADX had identified nothing comparable in
the Pensacola-Mobile area.
Second, the Commission explained that ADX’s market
definition proposal, based on transmitter locations and signal
contours, is “precisely the approach that the Commission
rejected when it adopted the Arbitron Metro standard in 2003.”
2014 Denial Order, ¶ 4 (citing 2013 Bureau Denial Letter at
27). ADX points out that the Commission nonetheless provided
for exceptions in the Ownership Order. We agree that this
reason could not justify the Commission’s decision standing on
its own, because citing the baseline shift to the Arbitron
definitions does not explain a decision to deny an individual
12
request to deviate from those definitions. But considered in
conjunction with the Commission’s first reason, we understand
the Commission to be underscoring the fact that deviating from
the Arbitron definitions here would mean deviating in every
other pair of adjacent Metros as well, which would effectively
reinstate the old market definition methodology. The
Commission did not have to consider that option because the
time for challenging the Ownership Order has passed, see 47
U.S.C. § 402(c), and ADX does not purport to do so in any
event.
Third, rejecting ADX’s assertion that the Media Bureau had
“mechanically” applied the numerical ownership limits, the
Commission noted the Bureau’s “full public interest analysis”
and its conclusion that “post-transaction, competition for
listeners would be preserved in the Mobile and Pensacola
markets,” a conclusion with which the Commission agreed, as
both Metros will still have at least ten owners. See 2014 Denial
Order, ¶ 4 & n.8 (citing 2013 Bureau Denial Letter at 25). This
consideration, like the second, might not be a sufficient
explanation standing on its own, because the multiple ownership
rules are concerned with the proportion of stations owned by a
single entity, not simply the number of owners. See 47 C.F.R.
§ 73.3555(a). But neither is this consideration irrelevant to the
public interest analysis that the Commission must undertake
when reviewing applications to transfer radio licenses. See 47
U.S.C. § 310(d). Given an increase in license concentration (as
is occurring here), the Commission could reasonably conclude
that the “diversification of mass media ownership,” Nat’l
Citizens Comm. for Broad., 436 U.S. at 780, would be better
served by holding constant, rather than reducing, the number of
owners in the market. See 2013 Bureau Denial Letter at 25. In
any event, this consideration, when added to the first, provides
a sufficient explanation for the court to conclude that the
Commission’s decision was not arbitrary or capricious. The
13
Commission has articulated a “rational connection between the
facts found and the choice made.” Motor Vehicle Mfrs. Ass’n,
463 U.S. at 43.
III.
ADX also contends that it was arbitrary and capricious for
the Commission to refuse to apply the two-year waiting period
described in the Ownership Order, which would have barred
Cumulus from immediately relying on the change in community
of license to justify avoiding contour-overlap analysis. Because
the change allowed Cumulus to alter the market definition
methodology to which its licenses were subject, ADX maintains
that the purpose behind the waiting period — preventing
manipulation of the Arbitron market definitions — applied, and
that failing to apply it was contrary to Commission precedent.
A.
As a threshold matter, the Commission contends ADX lacks
standing under Article III of the Constitution to assert this
challenge. It does not question ADX’s asserted injury — that
ADX “will be subjected to a much higher level of competition”
because of Cumulus’s acquisition, Appellant’s Br. 2–3 — but
rather maintains that ADX cannot satisfy the redressability
requirement. To have Article III standing, a party “must
demonstrate that it is likely” that its injury “will be redressed by
a favorable decision of the court.” Spectrum Five LLC v. FCC,
758 F.3d 254, 260 (D.C. Cir. 2014) (quotation marks omitted).
The Commission maintains that because the two-year period had
passed by the time ADX filed its appeal, as the Commission
approved the change in community of license on May 7, 2012,
“any remand concerning this issue would not change the
outcome of the administrative proceeding.” Appellee’s Br. 34.
14
The Commission misunderstands the nature of ADX’s
challenge. ADX asks the court to “reverse” the Commission’s
decision, Appellant’s Br. 55, which means the “[u]nwinding of
Cumulus’ purchase,” Reply Br. 24. If the court reversed the
2014 Denial Order, then Cumulus would no longer have its new
licenses, and the competitive injury of which ADX complains
would be alleviated. The court cannot presume that reversing
the 2014 Denial Order “would not change the outcome of the
administrative proceeding,” Appellee’s Br. 34, because the court
cannot know how the Commission (or the parties) would react
to the changed circumstances presented by the passage of time
and the analysis in the court’s opinion. However the
Commission might respond, it is enough that ADX will obtain
the exact relief it seeks should its challenge succeed on appeal,
without any need to rely “on actions by a third party not before
the court.” Klamath Water Users Ass’n v. FERC, 534 F.3d 735,
739 (D.C. Cir. 2008). When a party alleges that an agency’s
action was arbitrary and capricious for failure to comply with
the agency’s own procedures, the agency cannot defeat standing
merely by asserting that it will come to the same conclusion
once the procedures are satisfied on remand. Cf. Idaho v. ICC,
35 F.3d 585, 591 (D.C. Cir. 1994) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 572 n.7 (1992)).
B.
Turning to the merits, ADX must show that the
Commission’s interpretation of the Ownership Order is “plainly
erroneous or inconsistent with the regulations or there is any
other reason to suspect that the interpretation does not reflect the
agency’s fair and considered judgment on the matter.” Talk
America, Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2261
(2011) (quotation marks and alterations omitted). It has failed
to do so. The Ownership Order itself identifies only two
circumstances in which the two-year period would apply: “a
change in Arbitron Metro boundaries,” and the “inclusion of a
15
radio station as ‘home’ to a Metro.” Ownership Order, ¶ 278.
More generally, it describes the waiting period as applying to “a
change in Arbitron Metro definitions.” Id. The Media Bureau
has since applied the waiting period to the elimination of an
entire Metro by Arbitron. See In re WCCL(FM), Central City,
Penn., et al., (“Forever Broadcasting”), 23 FCC Rcd. 17978
(Media Bureau 2008). Neither the Ownership Order nor
precedent applying it state that a change in community of license
alone would trigger the waiting period.
ADX instead points to the broader purpose of the two-year
waiting period: preventing manipulation of the multiple
ownership rules. Although the Commission did identify the goal
of preventing licensees from “circumventing the local radio
ownership rule,” it did so only in the context of licensees
“attempting to manipulate Arbitron market definitions.”
Ownership Order, ¶ 278 (emphasis added). Its concern was
“‘the malleability of Arbitron Metro market definitions.’” 2014
Denial Order, ¶ 5 (emphasis added) (quoting 2013 Bureau
Denial Letter at 26). As interpreted by the Commission, the
waiting period applies to changes in market definition made by
Arbitron, not to changes approved by the Commission. See
2014 Denial Order, ¶ 5; 2013 Bureau Denial Letter at 26. Thus,
the Commission maintains that because it approved Cumulus’s
change in community of license, and the Arbitron “home”
designation did not change, the two-year waiting period did not
apply. See Appellee’s Br. 36. That interpretation is consistent
with the explanation and examples in the Ownership Order.
Although the Commission has not suggested that, in considering
whether to approve community of license changes, it takes
account of possible manipulation of the ownership rules, ADX
points to nothing in the Ownership Order that contradicts the
Commission’s interpretation. The Media Bureau precedent on
which ADX relies also involved changes made by Arbitron, not,
as here, a change approved by the Commission. See In re
16
WCCL(FM), Central City, Penn., et al. (“Forever
Broadcasting”), 23 FCC Rcd. 17978; In re Citicasters Licenses,
L.P., 22 FCC Rcd. 17788 (Media Bureau 2007). ADX therefore
fails to show that the Commission’s interpretation is “plainly
erroneous or inconsistent with the regulation” or otherwise
suspect, Star Wireless, 522 F.3d at 473; see Talk America, 131
S. Ct. at 2261.
Accordingly, we affirm the 2014 Denial Order of the
Commission.